The latest episode in the unfolding story of Justice Bill Wilson sees our intrepid hero, Sir Edmund (Ted) Thomas, radically reduce the number of Christmas cards he will have to answer this year.

I think it is safe to say that the public availability of some 30-odd pages of email correspondence in which a recently retired judge and top lawyer variously debate how best to encourage a Supreme Court judge to resign from office, suggest a preparedness to overlook judicial misconduct if necessary to protect a friend, descend into calling a blogger names ("shithead"; "lowlife"), before finally falling out over the confidentiality of their previous discussions does nothing to improve the (already low) public perception of the legal profession.

That is not, of course, a reason to refrain from publishing such correspondence. However it came into the New Zealand Herald's possession, the paper could hardly have done other.

[On that latter point, there seems to me only two likely ways that the paper could have obtained these emails. One is that a party to the correspondence leaked it to them for some reason. This would not be good. The other is that the emails form a part of the submissions in Justice Wilson's challenge to the appointment of a Judicial Conduct Panel, and the paper got them from the court file. That would be better.]

Nor should we judge too harshly what two people say, or how they express themselves, in what would have been assumed to be private messages between old friends. Certainly I would not want some of my less temperate communications, written in the passion of the moment, laid out for dissection in the public arena.

That being said, I have just two brief, Friday afternoon comments to make about the substance of the emails.

First of all, a trail of email correspondence may tell only a partial tale, especially when some of them are sent in response to telephone conversations that we will never get to hear. Furthermore, we cannot be sure that the correspondence trail is complete (the pages are numbered by hand, and some (i.e. 1&2; 4&5; 11; 13; 26-29; 34; 42; 44&45) appear to be missing) - so a degree of caution in assuming they tell the full story is warranted.

Second, the emails we do have reveal two minds that begin in concurrence and then over the course of four months move in opposite directions. That is to say, Sir Ted and Jim Farmer start off apparently united in their disquiet about Bill Wilson's behaviour and the need for him to resign over the Saxmere affair. As time goes by, Sir Ted becomes steadily more outraged over the matter and presses more and more strongly for those with knowledge of it to bring it to the attention of the relevant persons. Jim Farmer, in contrast, apparently begins to think that the affair may be more complicated and nuanced than he first thought, and that perhaps the need for Bill Wilson's resignation was less pressing than it seemed initially.

I suspect that these two paths are widely replicated in the legal profession generally. I know from personal experience that a lot of lawyers cannot understand why Justice Wilson is so determined to remain on the Court, and believe he should voluntarily have stood down from it long ago. But I also know others who are suspending judgment to see what exactly can be proven about what Justice Wilson knew and when he knew it, and think that only once this is established can his future be decided.

The problem I foresee is that the present judicial challenge to establishing the Judicial Conduct Panel might result in no-one being satisfied. For if the court were to hold that the decision to appoint a Panel was wrong in law (on the basis that Justice Wilson's conduct could not, even on its worst possible interpretation, be a basis for his removal from office), then we'll get left in a state of limbo where Justice Wilson still sits on the bench but without the full facts of this affair being established openly in the public arena.

In this case, rumour, innuendo and assumptions - such as pervade the 30-odd pages of these emails - will fill the void. Which hardly provide a sound foundation on which to base the temple of justice.

Comments (8)

I think you may be correct about no one being satisfied Andrew; my concern is where to from there if that is the case? What if either party wants to appeal the outcome of the review. Nearly every appellate judge will have to recuse themselves and then what?

Andrew, I don't see how the Herald's publishing these e-mails adds to the case.

Going by what has been published in other media previously, we've mostly heard Sir Edmund Thomas's accounts of what others (Jim Farmer in this instance) have told him and what Mr Farmer says others have said, according to Sir Edmund. These e-mails appear to reinforce that.

Interesting as it all is, and these e-mails are, it seems to me that the truth will be dug out only in the proper legal forums.

I quite agree - hence my comments about "rumour, innuendo and assumptions" in my final paragraph.

My concern, however, is that the present judicial review proceedings are not designed to "dig out" the truth. Rather, they will assume the worst case scenario about Justice Wilson's behaviour (that he knew he should have disclosed fully to his colleagues on the Supreme Court, but chose not to) and ask whether even this behaviour is sufficiently bad to warrant a dismissal. Because if it is not, then there were no grounds to set up a Judicial Conduct Panel to carry out a full, public investigation into what did happen.

In a nutshell, if the review is successful, then we may never know what "the truth" was ... in which case gossip will take its place.

Just a couple of points to make here. Wasn't one argument for retaining the Privy Council based on too small a talent pool to avoid conflicts of interest? And I gather alot of what's going on with the challenge is around the letter of the law and what can be proven. Shouldn't our standard for the final court of redress be just a bit higher than that? Getting off on a technicality is never a good look.

they will assume the worst case scenario about Justice Wilson's behaviour (that he knew he should have disclosed fully to his colleagues on the Supreme Court, but chose not to) and ask whether even this behaviour is sufficiently bad to warrant a dismissal.

What is the least bad thing for which a judge of a court of superior jurisdiction has been removed from office?

Certainly it's been tried for quite minor things. But when the process has actually worked, and a judge has been forced from office, what did they do? Certainly, most were for much more serious offences - bribery, perjury - but what was the lowest thing for which it has actually happened?

The case of the removal of Canadian Judge Therrien is probably the closest to Wilson J. Therrien was removed for a single failure to disclose an expunged conviction when he applied to become a judge. He was appointed and the old conviction discovered. The Court of Appeal removed him, not for having a conviction or the conduct that gave rise to it, but for the fact that he did not disclose the fact of conviction. Therrien thought he had a right to do so under Quebecs equivalent of the 'clean slates' law, but the Court held being a judge was not employment and so the 'clean slates' legislation did not protect him.

Our Clean Slates legislation has a Therrien clause built into it as a result.

Another relatively minor incidence of misconduct leading to removal was Judge Moreau Berube who was removed for launching into a diatribe criticising the inhabitants of the Acadian peninsula as all being dishonest and crooked. She apologised profusely three days later but was removed.

I venture to suggest that if Wilson J was a Canadian jurist, he would be screwed. If he was a US jurist he would be before a grand jury.